By: Erin L. Kopelman
Lerch, Early & Brewer's Legal Update
Second marriages are more common than ever. Before taking the plunge for the second time, know how to protect your assets in the event of a divorce or that you die before your new spouse. Many people entering a second marriage want to make sure that the interests of their children from their first marriages are protected.
Create a Prenuptial Agreement
A prenuptial agreement allows you and your soon-to-be spouse to agree before the marriage how your assets, whether acquired in the past, present or future, will be distributed if you divorce or when you die. Such agreements can be entered into after the marriage (postnuptial agreements); however it’s better to address the issues before your marriage.
It is not uncommon for people remarrying to want to determine the allocation of expenses during the marriage. Similarly, sometimes couples want to establish the division of property and the payment of alimony (or not) in the event of a divorce. All of those things and more can be addressed in a prenuptial agreement prepared by an experienced family law attorney.
Revise Your Will
In most states, a surviving spouse has an interest in the estate of his or her deceased spouse, regardless of provisions in a will to the contrary. Many people in a second marriage would prefer that their assets (or some portion of them) transfer to children from the first marriage. This can be accomplished with a prenuptial agreement. In any event, it is important to consult a qualified estate planning attorney for proper estate planning to ensure that your assets will be distributed in accordance with your wishes. You should make sure your will is current and that you update documents specifying who can make medical and financial decisions for you in the event you become incapacitated.
Protect Your Non-Marital Assets
Assets acquired during marriage generally are marital, and thus subject to equitable distribution in the event of divorce. Assets acquired prior to a second marriage, those acquired by gift or inheritance during the marriage or those that can be traced directly to the foregoing sources are non-marital. So long as there is proof that they are non-marital and have not been comingled with marital assets, non-marital assets will not be distributed in a Maryland Court in the event of divorce. Some simple tips to protect and maintain your non-marital assets’ character are to:
- Keep your marital and non-marital assets separate. For example, keep your marital funds in a separate account from your non-marital funds. If you are going to work during your second marriage, keep the money you earn during the marriage separate from your non-marital money.
- Use marital funds during your second marriage. The exception is that if you need to contribute money towards the upkeep of a non-marital asset, then use your non-marital funds. This preserves the asset’s non-marital nature without comingling it. In the event you do not have non-marital funds to use for upkeep of a non-marital asset, then keep detailed records of what money is contributed to the non-marital asset and where it came from.
- Keep your non-marital assets titled in your own name. Do not re-title non-marital assets into joint name with your new spouse. For example, do not add your new spouse as joint owner of an account holding non-marital money, and do not re-title real estate owned by you prior to your marriage into joint name with your new spouse.
- Keep detailed records of your non-marital assets and their value at the time of your new marriage and throughout your marriage.
Considerations When the First Marriage Ended in Divorce
If you are getting remarried after having been divorced and are receiving alimony or have minor children, you should consult a family law attorney about how your remarriage may affect alimony, custody, and child support.
Erin Kopelman helps people entering second marriages with prenuptial and postnuptial agreements. She works closely with our estate planning and real estate attorneys when needed to help her clients make changes to their documents. To discuss how your remarriage affects your assets and your interests, contact Erin at firstname.lastname@example.org or 301-347-1261
This article originally appeared in Lerch, Early & Brewer's Legal Update, 2010, Vol. III. It is for your information only and is not intended to constitute legal advice. Please contact your attorney for more information.
Copyright 2010 by Lerch, Early & Brewer, Chtd.